Appendix — Gust v. Cramer

~ Supreme Court, U,

| FILED’

@8-1234 FEB 8 1979

_ MICHAEL RODAK, JR., CLERK

its atten

In The

Supreme Court of the United States

October Term 1978

No.

DAVID H. GUST,

Petitioner,

Us.

NEIL CRAMER,

Respondent.

Appendix to Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

DAVID H. GUST

399 Parma Center Road

Hilton, New York 14468

Phone (716) 458-1000, ext. 21855

DAVID H. GUST

Pro Se

February 1979

Daily Record Corporation (4532) Spaulding Law Printing

Rochester, New York Syracuse, New York

TABLE OF CONTENTS

Decision of United States Court of Appeals Second

gees CA Le a dea Wi wee hae Uh

Judgment on Decision of United States District Court for

the Western District of New York................

Letter of Town of Chili Justice Neil Cramer, dated

I Se ala dig pw kikca Wiateie x0 6

State of New York Letter of Rose Marie S. Scrodanus,

Assistant Counsel, dated January 24,1978 .........

State of New York Letter of Rose Marie Scrodanus,

Assistant Counsel, dated July 24, 1978 ............

Nee ee ea ca ce

Page

A-l

DECISION OF UNITED STATES COURT OF

APPEALS SECOND CIRCUIT

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a Stated Term of the United States Court of Appeals, in and

for the Second Circuit, held at the United States Court House, in

the City of New York, on the twelfth day of December, one

thousand nine hundred and seventy-eight.

Present: HONORABLE WALTER R. MANSFIELD,

HONORABLE JAMES L. OAKES,

Circuit Judges.

HONORABLE JOHN R. BARTELS, SR.

District Judge.

DAVID H. GUST,

Plaintiff-A ppellant,

-against-

NEIL CRAMER,

Defendant-A ppellee.

Docket No. 78-7405

Upon this appeal by David Gust from a judgment of the United

States District Court for the Western District of New York

granting appellee’s motion for summary judgment dismissing

appellant’s action under Title 42 U.S.C. $1983 seeking to vacate

his conviction by the Town Court of Chili, New York, on June 2,

1977, for violation of §§1102 (failure or refusal to comply with a

lawful order of a Public Officer), 375-25(a) (inadequate splash-

guards on a trailer) and 401-4 (failure to have a registration for

A-2

Decision of United States Court of Appeals Second Circuit

the trailer) of the N.Y. Vehicle & Traffic law, appellant claims

that he was denied due process by appellee, the Town Justice

who found him guilty, which had the effect of adding 2 points to

his driver’s license. Gust has filed a separate motion with this

Court to vacate his conviction.

The judgment of the district court is affirmed and the motion

to vacate the state town court conviction is denied. Except in

exercise of habeas corpus jurisdiction federal district courts lack

the power to sit in review of or to reverse state court convictions

absent evidence that the state court proceedings were a sham or

that the judge deliberately acted without any jurisdiction.

Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923); Atlantic

C.L.R. Co. v. Engineers, 398 U.S. 281, 296 (1970).

Gust’s proper course was to appeal the town court’s judgment

within the state court system.

ls) WALTER R. MANSFIELD,

Walter R. Mansfield, U.S.C./.

ls) JAMES L. OAKES,

James L. Oakes, U.S.C.J.

ls) JOHN R. BARTELS,

John R. Bartels, Sr., U.S.D./.

A-3

JUDGMENT ON DECISION OF UNITED STATES

DISTRICT COURT FOR THE WESTERN DISTRICT

OF NEW YORK

UNITED STATES DISTRICT COURT

For The

WESTERN DISTRICT OF NEW YORK

Civil Action File No. 78-189

DAVID H. GUST

vs.

NEIL CRAMER

This action came on for (hearing) before the Court, Honorable

Harold P. Burke, United States District Judge, presiding, and

the issues having been duly (heard) and a decision having been

duly rendered,

It is Ordered and Adjudged that the defendant have summary

judgment dismissing the suit for failure to state a cause of action

for which relief can be granted.

Dated at Buffalo, New York, this 7th day of July, 1978.

ls) JOHN K. ADAMS

John K. Adams

Clerk of Court

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LETTER OF TOWN OF CHILI JUSTICE

NEIL CRAMER, DATED JANUARY 10, 1978

TOWN OF CHILI

Originated in 1822

TOWN OFFICES: 3235 CHILI AVENUE,

ROCHESTER, NEW YORK 14624 Tel: 889-3550

TOWN JUSTICE TOWN JUSTICE

Walter M. Pelkey Neil C. Cramer

January 10, 1978

State of New York

Department of Motor Vehicles

Empire State Plaza

Albany, New York 12228

Re: David H. Gust

G2173219976893530-37

Gentlemen:

On June 2, 1977 Mr. David H. Gust was found guilty by me to

the charge of violation of Section 1102 of the Vehicle and Traffic

Law and was fined the sum of $25.00. I inadvertently informed

the defendant at the time of sentencing that this violation had

no points assessed. Inasmuch as this was not a moving violation I

felt that no points should have been assessed with respect to this

conviction. If there is any way possible for these points to be

removed from Mr. Gust’s records it would be appreciated.

Cordially,

ls) NEIL C. CRAMER

Neil C. Cramer

Town Justice

NCC/kb

A-5

STATE OF NEW YORK LETTER OF

ROSE MARIE S. SCRODANUS,

ASSISTANT COUNSEL, DATED JANUARY 24, 1978

[SEAL]

STATE OF NEW YORK

DEPARTMENT OF MOTOR VEHICLES

EMPIRE STATE PLAZA

ALBANY, NEW YORK 12228

JAMES P. MELTON

Commissioner

STANLEY M. GRUSS

Deputy Commissioner and Counsel

Legal Division

JOSEPH R. DONOVAN

First Assistant Counsel

January 24, 1978

Mr. David H. Gust

399 Parma Center Road

Hilton, New York 14468

Dear Mr. Gust:

I am in receipt of your letter of January 17, 1978, as well as

Judge Cramer’s letter of January 10, 1978, to this Department

regarding the point assessment of your conviction for a violation

of Section 1102 of the Vehicle and Traffic Law on April 2, 1977.

The foregoing conviction of June 2, 1977, is a conviction of

record. The Department of Motor Vehicles must assess two

points against your driving record since such assessment is

specifically required in accordance with Part 131 of the Com-

missioner’s Regulations, which I am forwarding for your

perusai. Unfortunately, without a court order signed by Justice

A-6

State of New York Letter of Rose Marie S. Scrodanus, Assistant

Counsel, dated January 24, 1978

Cramer vacating your conviction of June 2, 1977, for violation of

Section 1102 of the Vehicle and Traffic Law, the Department has

no other alternative but to retain the two-point assessment.

It should be noted that Justice Cramer’s request cannot be

honored since the two-point assessment is outside of his scope of

jurisdiction.

Very truly yours,

JAMES P. MELTON

Commissioner of Motor Vehicles

By: /s) ROSE MARIE S. SCRODANUS

Rose Marie S. Scrodanus

Assistant Counsel

RMSSiss

Enc.

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STATE OF NEW YORK LETTER OF

ROSE MARIE SCRODANUS, ASSISTANT

COUNSEL, DATED JULY 24, 1978

[SEAL] STATE OF NEW YORK

DEPARTMENT OF MOTOR VEHICLES

EMPIRE STATE PLAZA

ALBANY, NEW YORK 12228

JAMES P. MELTON

Commissioner

STANLEY M. GRUSS

Deputy Commisioner and Counsel

Legal Division

JOSEPH R. DONOVAN

First Assistant Counsel

July 24, 1978

Mr. David H. Gust

399 Parma Center Road

Helton, New York 14468

Dear Mr. Gust:

I am in receipt of your recent letter in which you ask if you

should have been assessed two points for failure to exhibit your

driver’s license.

Section 507(2) of the Vehicle and Traffic Law states in part

that an individual’s failure to exhibit his driver’s license is

presumptive evidence that he is not licensed.

If an officer is not offered a driver’s license upon request, the

proper citation of the Vehicle and Traffic Law to charge the

individual with is unlicensed operation, i.e. Section 509(1) of such

law and not a violation of Section 1192 in our opinion.

A-8

State of New York letter of Rose Marie Scrodanus, Assistant

Counsel, dated July 24, 1978

The Department was correct in assessing your New York State

driving record with two points since all convictions for violations

of Section 1102 receive the same two point assessment.

However, since you were charged with a violation of Section

1102 of the Vehicle and Traffic Law, the court has the ultimate

discretion of finding you guilty or innocent of such violation on

the basis of all facts presented.

Very truly yours,

JAMES P. MELTON

Commissioner of Motor Vehicles

By: /s) ROSE MARIE SCRODANUS

Rose Marie Scrodanus

Assistant Counsel

RMS/se

A-9

STATUTES

42 U.S.C. Section 1983

“Every person who, under color of any statute, ordinance,

regulation custom or usage of any State or Territory, subjects, or

causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof of the deprivation of any

rights, privileges, or immunities secured by the Constitution and

laws, shall be liable to the party injured in an action at law, or

other property proceeding for redress.”

New York State Vehicle and Traffic Law

Section 507-2. Failure to exhibit license.

Failure by a licensee to exhibit a license valid for operation

under this chapter, not including any record of convictions stub

to any magistrate, motor vehicle license examiner, motor vehicle

inspector, peace officer or state policeman shall be presumptive

evidence that he is not duly licensed.

Section 509-1. Except while operating a motor vehicle during

the course of a road test conducted pursuant to the provisions of

this article, no person shall operate or drive a motor vehicle upon

any sidewalk or to or from any lot adjacent to a public garage,

supermarket, shopping center, or car washing establishment or

to or from or into a public garage or car washing establishment

unless he is duly licensed pursuant to the provisions of this

chapter.

Section 1102. No person shall fail or refuse to comply with any

lawful order or direction of any police officer or other person

duly empowered to regulate traffic.

AUGUST 1976

PART 131

POINT SYSTEM

(Statutory authority: Vehicle and Traffic Law, §§ 215, 510, 511)

Sec.

131.1 Introduction

131.2 Point system

131.3 Point values

131.4 Administrative action

131.5 Exclusiveness of procedure

Section 131.1 Introduction. Paragraph (d) of subdivision 3 of

section 510 of the Vehicle and Traffic Law provides that a

license, registration or privilege of operating may be suspended

or revoked for habitual or persistent violation of any of the

provisions of the Vehicle and Traffic Law or of any lawful or-

dinance, rule or regulation made by local authorities in relation

to traffic. Subdivision 2 of section 521 of the Vehicle and Traffic

Law provides that the commissioner shall establish criteria,

based on driving record, for requiring attendance at a driver

improvement clinic. The following criteria are established to

identify driving records which shall be presumptively deemed to

constitute habitual or persistent violation of traffic laws under

such statutory provisions.

131.2 Point system. Every violation of the Vehicle and

Traffic Law or of any local law, ordinance, rule or regulation

may be assigned to point value by the commissioner. The point

value assigned to such violation shall be added to the violator’s

driving record upon receipt by the commissioner of a certificate

of conviction or a certificate of bail forefeiture. Administrative

action shall be taken by the commissioner based upon a

motorist’s point total as specified in this Part.

. =

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Statutes

131.3 Point values. (a) All traffic violations shall be assigned

a point value of two points, except as otherwise prescribed in

subdivision (b) of this section.

(b) Exceptions.

(1) The following violations shall be assigned a point value of

three points:

(i) any violation constituting a failure to yield the right

of way;

(ii) following too closely;

(iii) any violation involving rate of speed except where

the charge is speeding 25 miles per hour over the speed

limit and driving too slowly;

(iv) reckless driving.

(2) The following violations shall not be assigned any point

values:

(i) any violation relating to vehicle registration, licensing

or insurance;

(ii) any violation relating to motor vehicle inspection,

vehicle weights or dimensions or equipment other than

inadequate brakes;

(iii) any violation for which suspension or revocation

action is mandated upon conviction;

(iv) any parking violation;

(v) any pedestrian or bicycle violation;

(vi) any violation relating to a business or the sale of

goods established in the Vehicle and Traffic Law or any

local law;

(vii) any other violation not resulting from the operation

of a motor vehicle.

(3) The following violations shall be assigned a point value of

five points:

(i) any violation involving speeding 25 or more miles per

hour over the speed limit.

(c) Point values assessed shall be assessed as of the date of

violation.

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EXCERPTS FROM REPORTER’S TRANSCRIPT

Page 4, lines 13-16:

A. I turned on my emergency equipment and requested the

driver to pull to the side of the road.

Q. Did the automobile you were following pul! over?

A. Yes, it did.

Page 5, lines 7-17:

Q. Did he give you any reason for not producing his drivers

license or registration?

A. Yes, sir. He said he didn’t have to produce his drivers

license or registration. He was pleading the fifth amendment on

self incrimination.

Q. Did you ask the driver of the automobile his name?

A. Yes, I did.

Q. Were you able to ascertain what his name was?

A. Ata point in time, I was, yes.

Q. What name did he give you?

A. David H. Gust.

Page 8, lines 19-23:

Q. Did he volunteer any of those documents at any time while

you were there?

A. No, sir, he did not.

Q. You further issued a citation for violating section 1102 of

the Vehicle and Traffic Law?

Page 9, lines 1-4:

A. Yes, sir, I did.

Q. For what reason?

A-13

Excerpts of Reporter's Transcript

A. Failing to comply with a lawful order of a police officer. I

base that on the law that does require a person once stopped to

produce a drivers license.

Page 9, lines 21-23

Q. Would you tell the Court what objection the Defendant

imposed at that time?

A. I think—

Page 10, lines 1-2:

THE COURT: He didn’t testify to that. Anything he testified

to, you can cross examine him on.

Page 21, lines 6-23:

MR. GUST: I shared with him my opinion that a citizen of the

United States of America may refuse to answer questions unless

protected by a immunity statute. I asked the officer, and the

officer was polite. There was no animosity at this point. I asked

if the officer was to grant me immunity in prosecution because

of any documents I give him. He said he couldn't. I said he would

have to find his own independent resources in providing in-

formation for the prosecution against me. | told him to the best

of my knowledge the vehicles were properly registered and in

order, and I had nothing to hide, but I was very concerned about

the number of times that I had been stopped and all it was was a

matter of showing that, and all it was was a matter of in-

convenience, and I felt this ought not to be. I said I was aware of

the provision of the Vehicle and Traffic Law. I was also aware of

the provisions of the Constitution of the rulings of the Supreme

Court.

Page 22, lines 1-19:

I quoted to him Henkel (Phonetic) versus Hayley (Phonetic)

which states the individual may refuse to answer questions

A-14

Excerpts of Reporter's Transcript

unless protected by an immunity statute. I cited Sullivan versus

United States where the Court ruled—

THE COURT: Answering questions is one thing. If he asks you

where you work or something like that, you can refuse to an-

swer, but when he gives you a lawful order to produce your

drivers license and registration, let’s keep to the point here.

MR GUST: Then the provisions that normally apply to hoodlums

and criminals do not apply to motorists?

THE COURT: The law says if a police officer asks you to

produce your license and registration, you must do it.

MR. GUST: Does not the higher law, I quote, supersede that?

THE COURT: No.

Page 27, lines 8-14:

THE COURT: You didn’t do what he asked you to do. He asked

for your license and registration, and you failed to comply.

MR. GUST: I believe I was justified in that failure—

THE COURT: I don't.

MR. GUST: Then I have to submit to the discretion of the

Court.

Page 29, lines 17-23:

THE COURT: Mr. Gust, I am going to find you guilty for not

having splash guards. I am going to find you guilty for failing to

comply to a lawful order. I am going to find you guilty for failing

to produce a registration for your trailer. I dismissed the

unlicensed.

MR. GUST: Are there points here for these things?

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Excerpts of Reporter’s Transcript

Page 30, line 1:

THE COURT: No points.

Page 34, lines 17-23:

MR. GUST: My claim is to my constitutional rights.

THE COURT: Your constitutional rights are here tonight.

MR. GUST: Well, the Courts have ruled there can be no

sanction or—

THE COURT: We go by the laws. If the law says you have to

produce a license and registration to a judge, to a police officer,

or toa motor vehicle

Page 35, lines 1-10:

inspector, you have got to do it.

MR. GUST: If there is a higher law that says you don’t, which

one do you obey?

THE COURT: Obey the law of the State o© New York.

MR. GUST: Not the Constitution.

THE COURT: No, sir. When that law is unconstitutional, they

have to take it off the books. That is why I am going by the law of

the State of New York.

MR. GUST: I appreciate that comment.

THE COURT: | am finding you $25 for each charge.

. *. .

DAVID H. GUST

399 Parma Center Road

Hilton, New York 14468

Phone: (716) 458-1000, ext. 21855